WORLD TRADE  
ORGANIZATION  TN/RL/GEN/63 
16 September 2005 
 (05-4071) 
Negotiating Group on Rules Original:   English 
  
 
PROPOSAL ON THE DISCLOS URE OF ESSENTIAL FACTS 
 
Communication by Turkey
 
  
 The following communication, dated 15 September 2005, is being circulated at the request of 
the Delegation of Turkey.   The submitting delegation has requested that th is paper, which was submitted to the Rules 
Negotiating Group as an informal document (JOB(05)/ 186), also be circulated as a formal document. 
 
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1.  Introduction 
  Throughout the investigation, the interested  parties should be informed via sufficiently 
detailed disclosure of findings, decisi ons and calculations to be able to  defend their interests.  Various 
Articles of the Anti-Dumping Agreement, in par ticular Article 6 and Ar ticle 12, describe the 
requirements to be fulfilled so as to provide full oppor tunity to the interested parties to defend their 
interests.   
 Among those Articles that call for transparency and due process, Article 6.9, in our view, is 
very critical in the sense that it requires disclosure of essential facts under consideration and that this 
be made in sufficient time.  Therefore we opine that this Article  merits a closer look by this Group.  
 
 Article 6.9 reads as follows:  
“The authorities shall, before a final dete rmination is made, inform all interested 
parties of the essential facts under considerati on which form the basis for the decision 
whether to apply definitive measures. Such disclosure should take place in sufficient time for the parties to defend their interests.” 
 The Article’s clear intention is to provide th e interested parties an opportunity to comment on 
the findings of the authority on dumping, injury  and causation, correct clerical errors or 
misinterpretations of the facts, if any, and obser ve whether their arguments  were taken into account, 
before the final determination is made, or  in other words before it is too late.  
 
 However, despite this critical task, the provisions  of this Article fall short off realizing this 
goal, since the Article does not explicitly announ ce certain key items such as the content of the 
notification and the time to be allowed to the inter ested parties to comment.  Furthermore, the Article 
seems to require disclosure of only the essential facts and not the considerations and evaluation by the 
authority of those facts, which are as important as the facts themselves in order for the interested parties to defend their interests.  TN/RL/GEN/63 
Page 2  
 
  Consequent to such deficiencies in the Artic le, our experiences have proven that in some 
cases the reports provided do not allow for a reasonable understanding of facts and findings that establish the basis for the authorities’ determinati ons and decisions.  Such practice prevents the 
interested parties from having adequate knowledge of the facts and findings essential to the case.  
This, in turn, denies the interested parties the opportunity to present rebuttal arguments.  
 
 In this respect, this paper intends to promote a discussion on the disclosure of essential facts and considerations.  However, while doing this, Turkey is aware that Members have differing anti-
dumping systems.  To the best of our knowledge, th ose Members, who have a bifurcated system with 
regard to dumping and injury determinations, disclose only facts regarding dumping findings.  
 
 However, Article 6.9 requires the disclosure of the essential facts under consideration, which form the basis for the decision whether to appl y definitive measures.  Thus, any disclosure under 
Article 6.9 should cover facts about dumping, injury  and causal link, since findings on these items are 
the key to final decision.   Yet, we are of the view that it is essential for the interested parties to be 
informed beforehand of the facts and also of the considerations, which form the basis for the final 
decision.  
 
2.  Proposal  
 Turkey proposes to amend Article 6.9 as follows:  
 “The authorities shall, before a final determinati on is made, inform all interested parties of the 
essential facts and considerations which form the b asis for the decision whether to apply definitive 
measures.  Such disclosure shall, due regard bei ng paid to the requirement for the protection of 
confidential information, contain in particular: 
 
 (i) the names of the suppliers, or when th is is impracticable, the supplying countries 
involved; 
  (ii) a description of the product which is sufficient for customs purposes;  
 (iii) the margins of dumping established and a full explanation of the reasons for the 
methodology used in the establishment and comparison of the export price and the normal value under Article 2; 
  (iv) considerations relevant to inju ry and causation as set out in Article 3. 
 
The parties shall be allowed 15 days to comment. 
 
3.  Explanation  
 The proposal is intended to add more predictability to the current text of Article 6.9.  In this 
respect, the content of the disclosure and a time limit to provide comments on the disclosure are 
introduced.  In shaping this proposal, we have benefited from Article 12.2.1, which we believe 
contains sufficient guidance on what may be included in a disclosure.  Moreover, we are of the view that some parallelism between final disclos ure and public notices would be useful. 
 
 It is clear that, the essential facts in an anti- dumping investigation that will form the basis for 
the decision whether to apply definitive measure s are the information on injury, dumping and the 
causal link between the two.  Thus, any disclosure should basically include such facts and findings on these three items.  To this end, Turkey proposes to improve Article 6.9 so as to lay down the content 
of final disclosure.  TN/RL/GEN/63 
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 Our proposal also introduces a solid period fo r the interested parties to comment on the 
disclosure.  Although our practice so far has proven th at the 15-day period to comment is sufficient in 
most of the cases and an extension may be grante d where necessary, we are still open to discuss this 
time period. 
 
 The paper does not purport to represent Turkey’s final views on the matter and Turkey reserves the right to offer additional th oughts during the negotiation process.   
 
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